Citation Nr: 0927879
Decision Date: 07/27/09 Archive Date: 07/30/09
DOCKET NO. 06-20 750 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: Robert P. Walsh, Attorney
ATTORNEY FOR THE BOARD
J.C. Schingle, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1939 to
December 1944.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of a January 2006 rating decision rendered by the
Detroit, Michigan Regional Office (RO) of the Department of
Veterans Affairs (VA).
FINDINGS OF FACT
1. In a decision dated in May 2004, the RO confirmed a
previous July 1984 RO decision that denied service connection
for bilateral hearing loss, which had been based on the
finding that there was insufficient evidence establishing an
etiological relationship between current hearing loss and
active service; the Veteran did not appeal the May 2004
decision within one year of being notified.
2. The additional evidence received since the May 2004 RO
decision is either cumulative or redundant of evidence
already of record, does not relate to an unestablished fact
necessary to substantiate the claim, and does not raise a
reasonable possibility of substantiating the claim of service
connection.
CONCLUSIONS OF LAW
1. The October 1995 RO decision which denied service
connection for Ménière's disease, to include bilateral
hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38
C.F.R. § 20.1103 (2008).
2. New and material evidence has not been received to reopen
the claim of service connection for bilateral hearing loss.
38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a)
(2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act (VCAA)
With respect to the Veteran's claim, VA has met all statutory
and regulatory notice and duty to assist provisions. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326 (2008).
Prior to the adjudication of the Veteran's claim, a letter
sent in May 2005 fully satisfied the duty to notify
provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1);
Quartuccio v. Principi, 16 Vet. App. 183 (2002); Kent v.
Nicholson, 20 Vet. App. 1, 9-10 (2006) (holding that VA must
notify a claimant of the evidence and information that is
necessary to reopen the claim and the evidence and
information that is necessary to establish entitlement to the
underlying claim). The Veteran was notified of the basis for
the prior denial of his claim and of evidence that was needed
to reopen his claim. He was also notified of the evidence
that was needed to substantiate his claim; what information
and evidence that VA will seek to provide and what
information and evidence he was expected to provide.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In this case, the Veteran's service, VA and private treatment
records have been obtained and associated with the claims
file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no
indication in the record that any additional evidence,
relevant to the issues decided herein, is available and not
part of the claims file. The Board notes that the Veteran
was afforded a VA examination in connection with his claim.
See 38 C.F.R. § 3.159(c)(4). Consideration as to the
adequacy of the examination is not deemed to warranted as the
matter is not being reopened. Paralyzed Veterans of America
v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.Cir.
2003) (holding that VA need not provide a medical examination
or medical opinion until a claim is reopened). See also
Woehlaert v. Nicholson, 21 Vet.App. 456 (holding that
adequacy of VA medical examination mooted upon Board's
determination that claimant not entitled to reopening of
claim, and conduct of VA medical examination, when claimant
had not presented new and material evidence.)
Since the Board has concluded that a reopening of the claim
for service connection is not warranted, any questions as to
the appropriate disability rating or effective dates to be
assigned are rendered moot and no further notice is needed.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
In summary, the Veteran has been made aware of the
information and evidence necessary to reopen his claim and of
the evidence necessary to substantiate his claim and is
familiar with the law and regulations pertaining to the
claim. See Desbrow v. Principi, 17 Vet. App. 207 (2004);
Valiao v. Principi, 17 Vet. App. 229, 232 (2003).
New and Material Evidence
In this case, the Veteran contends that his current bilateral
hearing loss is due to noise exposure in service.
Specifically, the Veteran contends that he was exposed to
artillery fire and an explosion. He reported that his unit
was bombed on July 20, 1943. See April 2005 lay statement.
He similarly reported in a June 2006 statement that his
hearing loss was the result his close-range exposure to
explosions. The Veteran contends that he has difficulty
hearing in social and occupational situations. Specifically,
the Veteran reported that he has difficulty hearing
conversations over the telephone and often has to ask people
to speak loudly and repeat themselves so that he can
understand what they are saying. See June 2006 lay
statement.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304
(2008).
However, before reaching the merits of the Veteran's claim,
the Board must first rule on the matter of reopening of the
Veteran's claim. That is, the Board has a jurisdictional
responsibility to consider whether it is proper for the claim
to be reopened. Barnett v. Brown, 83 F.3d 1380, 1383-84
(Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244
(1993) (holding that Board reopening is unlawful when new and
material evidence has not been submitted).
By a rating action dated in July 1984, the RO denied service
connection for bilateral hearing loss. Referencing a March
1947 VA examination report, the RO observed that there had
been no evidence of hearing loss within three years of
service discharge, and that there was no evidence
establishing an etiological relationship between current
hearing loss and active service. The Veteran did not appeal
this decision. Thereafter, the RO denied a reopening of the
Veteran's claim for service connection for bilateral hearing
loss in May 2004. There was no appeal of this rating
decision, and it became final. Therefore, the laws and
regulations governing finality and reopening of a previously
disallowed claim are pertinent in the consideration of the
current claim on appeal.
A decision by the RO shall be final and binding on all field
offices of the Department of Veterans Affairs as to
conclusions based on the evidence on file at the time VA
issues written notification of the decision. A final and
binding agency decision shall not be subject to revision on
the same factual basis except by duly constituted appellate
authorities or except where there is clear and unmistakable
error in the decision. 38 U.S.C.A. § 7105 (West 2002); 38
C.F.R. §§ 3.104, 20.1103 (2008).
Under pertinent law and VA regulations, as interpreted by the
Court, the Board may reopen and review a claim which has been
previously denied if new and material evidence is submitted
by or on behalf of the appellant. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. § 3.156(a) (2008).
A claim will be reopened if new and material evidence is
presented. 38 U.S.C.A. § 5108. Because the May 2004 rating
decision is the last final disallowance, the Board must
review all of the evidence submitted since that action to
determine whether the Veteran's claim for service connection
should be reopened and readjudicated. Evans v. Brown, 9 Vet.
App. 273, 282-83 (1996). If new and material evidence is
presented with respect to a claim which has been disallowed,
the Board shall reopen the claim and review the former
disposition of the claim. 38 U.S.C.A. § 5108.
"New" evidence is defined as evidence not previously
submitted to agency decision makers. "Material" evidence
means existing evidence that, by itself or when considered
with previous evidence of record, relates to an unestablished
fact necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a) (2008).
Evidence is presumed to be credible for the purpose of
determining whether the case should be reopened; once the
case is reopened, the presumption as to the credibility no
longer applies. Gustus v. Principi, 3 Vet. App. 510, 513
(1992). The evidence must be both new and material; if the
evidence is new, but not material, the inquiry ends and the
claim cannot be reopened. Smith v. West, 12 Vet. App. 312,
314 (1999). If the Board determines that the evidence
submitted is new and material, it must reopen the case and
evaluate the appellant's claim in light of all the evidence.
Gustus, 3 Vet. App. at 512.
With respect to claims requiring new and material evidence,
the VCAA states that, "[n]nothing in this section shall be
construed to require the Secretary to reopen a claim that has
been disallowed except when new and material evidence is
presented." 38 U.S.C.A. § 5103A(f) (West 2002).
The pertinent evidence of record at the time of the May 2004
rating decision included the Veteran's service records, the
report of a March 1947 VA examination, VA treatment records
from 1984 to 1995, treatment records from Prompt Care
Express, and an August 1995 lay statement.
A review of the service records shows no evidence of
complaints of or treatment for hearing loss or hearing
problems. The Board notes that service records show the
Veteran was awarded three Bronze Stars and a Combat Infantry
Badge and had two years and two months of Foreign Service.
The report of a March 1947 VA examination indicated that his
ears were normal. His hearing by spoken voice was 20/20
bilaterally. No complaints of hearing loss were noted.
An April 1984 VA examination showed Ménière's disease with
bilateral sensorineural hearing loss at 4000 Hz, dizziness,
and intermittent tinnitus. In a May 1984 audiological
treatment record, the examiner noted hearing loss greater in
the high than low frequencies and sensorineural in nature.
The examiner also noted very poor speech discrimination
ability bilaterally although slightly better in the right
ear.
The August 1985 lay statement confirms the Veteran's
contention that his unit was bombed.
In reaching a determination on whether the claim should be
reopened, the reason for the prior denials should be
considered. In essence, the July 1984 RO decision denied the
Veteran's claim because there was no evidence of record
connecting the Veteran's current bilateral hearing loss to
service. Therefore, the RO determined that no new and
material evidence had been submitted to reopen the claim.
The pertinent evidence of record since the 1995 rating
decision includes, VA treatment records from 1995 to 2005 and
a September 2005 audiological examination.
VA treatment records show complaints of and treatment for
hearing loss. In September 2005, the Veteran was afforded a
VA audiological examination. During the examination, the
Veteran reported in-service noise exposure as a rifleman and
machine gunner. The Veteran also described the incident of a
bomb exploding, but could not describe a hearing disturbance
or tinnitus at that time and no drainage of blood from the
ears. The Veteran reported post-service noise exposure
without hearing protection while working as a factory worker
for one year and while working as a boiler worker, inspector,
and pipe fitter for the State of Ohio. The examiner noted
that the Veteran's hearing loss was consistent with the
reported occupational exposure and Ménière's disease.
Puretone threshold, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
AVG
RIGHT
60
70
75
75
70
LEFT
50
65
70
75
65
Speech audiometry revealed speech recognition ability of 56
percent in the right ear and 78 percent in the left ear.
Findings showed moderate to severe sensorineural hearing loss
with poor word recognition in the right ear. Findings showed
mild to severe sensorineural hearing loss with fair word
recognition for the left ear.
The examiner opined that the Veteran's hearing loss was not
caused by or the result of noise exposure in service. The
examiner noted that the Veteran's hearing loss was normal
during service and that the Veteran filed his claim for
bilateral hearing loss nearly 40 years post service. The
examiner also noted that the Veteran had 20 years of
occupational noise exposure post service and 60 years of
recreational noise exposure to lawn care equipment and power
tools, all without hearing protection.
The additional medical records, while "new" to the extent
that they were not previously of record, are not "material"
in that they do not offer any probative evidence showing that
the Veteran's current bilateral hearing loss is related to
service. The evidence previously considered by the RO in
2004 included the Veteran's reported history of noise
exposure in service, service treatment records showing no
treatment for hearing loss of any kind, a 1947 VA examination
that was negative for hearing loss, and post-service
treatment records for bilateral hearing loss, but provided no
evidence of a nexus between the current bilateral hearing
loss and the Veteran's military service. Furthermore, the
evidence of record showed the first treatment for bilateral
hearing loss in 1984, nearly 40 years after service. The
more recent medical records show additional treatment for
bilateral hearing loss; however, there is again no competent
evidence suggesting a link between the current diagnosis,
shown many years after service, and the Veteran's military
service. Furthermore, the more recent medical evidence
provides a negative nexus, opining that the Veteran's current
hearing loss is not related to service, which is inherently
no material. Thus, such evidence is not both new and
material and the Veteran's claim cannot be reopened.
While the Veteran believes that his current hearing loss is
related to noise he was exposed to in service, he is not
competent to offer a medical opinion, and such statements do
not provide a sufficient basis for reopening a previously
disallowed claim. See Espiritu v. Derwinski, 2 Vet. App.
492, 494-95 (1992); Moray v. Brown, 5 Vet. App. 211, 214
(1995) (holding that where resolution of an issue turns on a
medical matter, lay evidence, even if considered "new," may
not serve as a predicate to reopen a previously denied
claim). Moreover, such statements are redundant of those
previously considered by the RO in its 1984 and 2004 rating
decisions.
As a whole, the additional evidence is not both new and
material. The evidence of record at the time of the October
1995 rating decision failed to demonstrate a relationship
between the Veteran's current bilateral hearing loss and
service. The additional evidence of record received since
the May 2004 rating decision is duplicative in that it shows
current bilateral hearing loss, but does not relate that
disability to service. Furthermore, this new evidence
provides a negative medical opinion. See September 2005 VA
examination. Therefore, the Board finds that the additional
evidence is not new and material. Accordingly, a basis to
reopen the claim of service connection for bilateral hearing
loss has not been presented.
The Veteran remains free, of course, to apply to reopen his
claim at any time with the RO, especially if he obtains
medical evidence showing that his current bilateral hearing
loss is related to active military service.
ORDER
The appeal is denied.
____________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs